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Voters Moving to Oust Judges Over Decisions

DES MOINES — After the State Supreme Court here stunned the nation by making this the first state in the heartland to allow same-sex marriage, Iowa braced for its sleepy judicial elections to turn into referendums on gay marriage.

The three Supreme Court justices on the ballot this year are indeed the targets of a well-financed campaign to oust them. But the effort has less to do with undoing same-sex marriage — which will remain even if the judges do not — than sending a broader message far beyond this state’s borders: voters can remove judges whose opinions they dislike.

Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.

In Kansas, anti-abortion activists are seeking to recall a justice. In Illinois, business interests are campaigning against the chief justice after a case that removed a cap on malpractice liability, prompting him to run a television ad that opens with the declaration, “I am not a politician.” And a conservative group called Clear the Bench Colorado is citing a host of decisions in seeking to oust the full slate of justices on the ballot there, urging voters, “Be a citizen, not a subject.”

The merit selection system, which is used to pick supreme court justices in 16 states, including Colorado, Iowa and Kansas, was established to reduce politics’ influence on the composition of the judiciary, in part by avoiding the expensive and bitter campaigns seen in states where two candidates compete. (For each vacant post in Iowa, a committee nominates three candidates, one of whom is named by the governor. Judges stand unopposed for retention after their first year and then every eight years.)

“The system was not designed so that people could reject one vote or one case,” said Rachel P. Caufield, a Drake University professor who studies judicial selection. “It was designed so that people could get rid of unfit judges. It was meant as an extreme measure.” She added, “The system has worked well — until now.”

Candidate spending for competitive state supreme court races nationwide increased to more than $200 million over the last decade — more than double the figure for the previous decade — but just $2 million of that was spent in states that used merit selection, according to a recently released report on spending in judicial elections.

Because of the contests being waged from Colorado to Illinois, the amount of money spent on retention elections this year is likely to approach or surpass the figure for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan Center for Justice at the New York University Law School and one of the co-authors of the report. “These cases suggest that the same type of arms-race spending in other contested elections is now beginning to impact previously quiet judicial elections,” Mr. Skaggs said. “These retention elections were sort of the last frontier that was free from this highly political, very expensive campaigning in the judiciary.”

Not that organized campaigns to remove judges through retention elections are without precedent. In 1986, Rose E. Bird, the chief justice of the California Supreme Court, was voted out along with two other justices after a contentious campaign that focused on her opposition to the death penalty. The current chief justice in California, Ronald M. George, who wrote the opinion that briefly legalized same-sex marriage (and later the opinion that upheld the voter-approved ban, Proposition 8), would face a similar campaign but he decided to retire rather than stand for re-election.

Photo

Bob Vander Plaats, a former candidate for governor in Iowa, is leading a campaign to oust three Supreme Court justices there.Credit
Brian C. Frank for The New York Times

In Iowa, the campaign has taken a national flavor with visiting Republican presidential hopefuls endorsing the removal effort and Sandra Day O’Connor, the former United States Supreme Court justice, urging the state to resist the national tug toward partisanship.

A half-century of judicial elections in Iowa could be cumulatively read either as a popular endorsement of a well-functioning judiciary or as a testament to voter apathy. Typically in Iowa, more than a third of people who go to the polls do not even cast votes in the judicial races. No sitting State Supreme Court justice has ever been defeated, and only four lower court judges were removed in nearly 50 years.

Conservatives and liberals believe that insulation from voters has allowed judges to rule independently of popular opinion. That belief is why national organizations have poured money into the ouster campaign in Iowa and why the effort is causing worry among advocates for same-sex marriage and for an independent judiciary. Same-sex marriage has been initially approved in four states by supreme courts and in three (and the District of Columbia) by legislatures.

Troy Price, political director for One Iowa, a gay rights group, said Iowans would not have voted for same-sex marriage and would likely reject it today. “Our concern is the message it sends to judges around the country that if you have a case like ours come before you, you could very well lose your jobs over it,” Mr. Price said. “This is an effort to intimidate the courts in Iowa and intimidate courts all across the country.”

Brian S. Brown, executive director of the National Organization for Marriage, which has spent $230,000 on television ads criticizing the Iowa judges, said he understood that removing the three judges would not change the same-sex marriage ruling. (It was a unanimous ruling by the state’s seven justices.) But Mr. Brown said he hoped the judges’ ouster would help prevent similar rulings elsewhere by making judges around the nation aware that their jobs are on the line.

“It sends a powerful message,” he said, “That if justices go outside the bounds of their oaths, if the justices go outside the bounds of the U.S. and state constitutions they’re going to be held accountable.”

Bob Vander Plaats, who made opposition to same-sex marriage a centerpiece of his unsuccessful run for governor in Iowa, is leading the ouster campaign on behalf of the political arm of the American Family Association, a conservative Christian organization based in Tupelo, Miss.

“My bigger fear isn’t about injecting politics into judicial retention elections. The bigger fear is that we don’t hold them in check,” he said, warning that gun and property rights could be at risk.

The embattled justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — have decided not to campaign. Two were initially appointed by former Gov. Terry Branstad, the Republican nominee for governor this year, who has declined to weigh in on the effort. One was appointed by Gov. Chet Culver, a Democrat who opposes the campaign.

Supporters of the judges, including most of the legal community here as well as a number of prominent Republicans, describe the campaign as punitive and suggested that if voters want to abolish same-sex marriage they should call a constitutional convention, a matter that is also on the ballot, or pressure the legislature to amend the constitution.

And then there is Jeffrey Neary, a district judge in northwestern Iowa who eight years ago survived what he believes was the state’s first campaign aimed at removing a judge (for granting a divorce to a same-sex couple). Judge Neary said the experience made him more cautious about how he approached controversial cases. He is up for retention this year. “I don’t want judicial positions to be political positions,” he said. “If that happens I don’t want to be a judge.”

A version of this article appears in print on September 25, 2010, on page A1 of the New York edition with the headline: Voters Moving To Oust Judges Over Decisions. Order Reprints|Today's Paper|Subscribe